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What Three Dissents Signal for Marriage’s Future

Not only was the Supreme Court’s ruling on the Defense of Marriage Act baseless and just plain wrong, you won’t learn much from reading Justice Anthony Kennedy’s majority opinion. Except that he thinks only bigotry can explain support for marriage as it was until the year 2000—a male-female union.

You can learn something, however, from reading the three dissenting opinions closely. The conservative justices’ dissents are like flares signaling the path that marriage proponents must take from here.

First, Justice Samuel Alito makes clear the actual constitutional status of marriage laws. We know what a 5-4 majority of the Supreme Court has said, but what does the Constitution really say?

Justice Alito frames the debate as a contest between two visions of marriage—what he calls the “conjugal” and “consent-based” views. It’s a contest in which the Constitution takes no sides.

Alito cites the book I co-authored with Princeton’s Sherif Girgis and Robert George as an example of the conjugal view of marriage: a “comprehensive, exclusive, permanent union that is intrinsically ordered to producing children.” He cites Jonathan Rauch as a proponent of the consent-based idea that marriage is a commitment marked by emotional union.

Alito explains that the Constitution is silent on which of these substantive, morally controversial visions of marriage is correct. The Court, he says, should decline to decide; it should defer to democratic debate.

In a second dissent, Chief Justice John Roberts emphasizes the limits of the majority’s opinion. He writes that “the logic of its opinion does not decide the distinct question whether the States, in the exercise of their ‘historic and essential authority to define the marital relation,’ may continue to utilize the traditional definition of marriage.”

Roberts notes that the “majority goes out of its way to make this explicit” at the end of its opinion. And he argues that “the disclaimer is a logical and necessary consequence” of the fact that “its judgment is based on federalism.”

Roberts insists on this point to make clear that the Court refused to redefine marriage for the entire nation. The Court refused to manufacture a constitutional right to same-sex marriage. Citizens and their elected representatives remain free to discuss, debate, and vote about marriage policy in all 50 states. They still have the freedom to define marriage in civil law as the union of one man and one woman.

But in the third dissent, Justice Antonin Scalia warns that this freedom is at serious and immediate risk. Scalia accurately characterizes the rhetoric of the Court’s majority opinion:

To defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements …. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. … All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence — indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

Scalia writes that he does not mean “to suggest disagreement with the Chief Justice’s view” about the confines of Kennedy’s opinion. But Scalia tells us to be clear-eyed: “I promise you this: The only thing that will ‘confine’ the Court’s holding is its sense of what it can get away with.”

The most serious looming challenge is that the Supreme Court will rule in an overreaching way again to remove the authority to make marriage policy from the American people and our elected representatives—if it thinks it can get away with it.

The Court will be less likely to usurp the authority of citizens if it is clear that citizens are engaged in this democratic debate and care about the future of marriage.

First and foremost, defenders of marriage need to start living out the truth about marriage. Long before there was a debate about same-sex anything, far too many heterosexuals bought into a liberal ideology about sexuality that makes a mess of marriage: Cohabitation, no-fault divorce, extra-marital sex, non-marital childbearing, massive consumption of pornography and the hook-up culture all contributed to the breakdown of our marriage culture.

So husbands and wives need to take seriously their vows to be faithful to one another through thick and thin, till death do them part. Mothers and fathers must take their obligations to their children seriously. The unmarried must prepare now for their future marital lives, so they can live out the vows they will make.

At one point in American life, virtually every child was given the great gift of being raised to adulthood by the man and the woman—the mom and the dad—who gave them life. Today, that number is under 50 percent in some communities. Same-sex marriage didn’t cause this, but it does nothing to help it, and will only make things worse.

The second thing to do is to insist that the government respect those who continue to stand for marriage as the union of a man and a woman. When he “evolved” on the issue last year, President Obama insisted that the debate about marriage was a legitimate one, that there were reasonable people of good will on both sides.

Obama explained that supporters of marriage as we’ve always understood it (a male-female union) “are not coming at it from a mean-spirited perspective. They’re coming at it because they care about families.” He added that “a bunch of ’em are friends of mine . . . you know, people who I deeply respect.”

But government hasn’t respected these Americans. Christian adoption agencies already have been forced out of the work of serving children because they believe orphans deserve a mom and a dad. Pushing out these agencies doesn’t help those orphans, and it doesn’t help our society.

We must insist that government not discriminate against those who hold to the historic definition of marriage. Policy should prohibit the government or anyone who receives taxpayers’ dollars from discriminating in employment, licensing, accreditation or contracting against those who believe marriage is the union of a man and a woman.

Already, in the wake of the Supreme Court’s June 26 ruling, Indiana Gov. Mike Pence has called on his state to pass a constitutional amendment defining marriage as the union of a man and a woman.

Marriage matters for children, for civil society and for limited government. Marriage is the institution that unites a man and a woman as husband and wife to be father and mother to any children that their union produces. And that’s why the government is in the marriage business. Not because it cares about adult romance, but because it cares about the rights of children.

In this struggle to preserve marriage, as in the pro-life cause, we need to take a long view. Such a view doesn’t look to immediate wins or losses, but decades-long paradigm shifts that reshape how Americans think about marriage.